Full opinion text
MEMORANDUM DECISION RE PLAINTIFF EEOC’S MOTION FOR SUMMARY ADJUDICATION (Doc. 37) AND DEFENDANT CALIFORNIA PSYCHIATRIC TRANSITIONS, INC.’S MOTION FOR SUMMARY ADJUDICATION (Doc. 40.) OLIVER W. WANGER, District Judge. This case involves allegations of sexual harassment, retaliation, and constructive discharge at California Psychiatric Transitions, Inc (“CPT”). Plaintiff Equal Employment Opportunity Commission (“EEOC”) alleges that CPT subjected a number of its female employees to a hostile environment created by sexual and gender harassment which culminated in adverse employment actions in violation of Title VII of the Civil Rights Act of 1964 (“Title VIP). Plaintiff seeks to correct these alleged unlawful employment practices and obtain relief for Mariel Somera (“Somera”) and Valeria Soares (“Soares”), the charging parties. Plaintiff EEOC seeks summary adjudication on the statutory prerequisites for bringing a suit under Title VIL CPT cross-moves for summary adjudication, arguing that the EEOC has not satisfied Title VII’s statutory prerequisites as to charging party Somera and those “women similarly situated.” CPT also seeks summary adjudication on Somera’s constructive discharge claim, Soares’ retaliation and hostile work environment claims, and the EEOC’s requests for punitive damages. EEOC’s motion for summary adjudication, filed on May 4, 2009, addresses whether it satisfied Title VII’s statutory prerequisites to commence litigation on behalf of Soares, Somera, and similarly situated women. (Doc. 37.) The EEOC seeks summary adjudication that a prima facie case is established for: (1) Soares’ hostile work environment and retaliation claims; (2) Somera’s hostile work environment and constructive discharge claims; and (3) the aggrieved parties’ hostile work environment claim. CPT moved for summary adjudication on May 4, 2009. (Doc. 40.) As to Somera, CPT argues that the EEOC’s constructive discharge claim is barred on three grounds: 1) her EEOC charge was untimely; 2) the EEOC failed to provide notice and opportunity to conciliate on the discharge claim; and 3) Somera sought to be rehired after quitting and, therefore, was not constructively discharged. As to Soares, CPT seeks to summarily adjudicate the following claims: 1) her sexual harassment claim fails as the harassing events she experienced did not rise to an actionable level; and 2) her retaliation claim fails because Soares did not engage in protected activity and the EEOC cannot demonstrate a pretextual dismissal. CPT does not challenge that Somera meets Title VII’s jurisdictional prerequisites. CPT also moves to dismiss the EEOC’s claims for punitive damages on behalf of Somera and Soares. I. FACTUAL BACKGROUND. A. The Parties The EEOC is an independent federal agency created by Congress in 1964 to eliminate discrimination in workplaces across the United States. The EEOC is charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, and is expressly authorized to bring this action on behalf of Soares and Somera pursuant to §§ 706(f)(1) and (3). Charging party Soares is a female employed by Defendant CPT from October 2003 to April 2004. Soares was hired by CPT as a mental health worker (“MHW”). Her duties included counseling residents, daily charting, and monitoring symptoms for medical and behavioral changes. Soares primarily worked the evening shift at the re-entry facility and was supervised by Larry Fuentes and Barbara Kelly. Charging party Somera is a female employed by Defendant CPT from February 2003 to December 2003. Somera was hired by CPT as a dietary aid and primarily prepared meals for CPT’s residents. Soares was one of five dietary aids supervised by Sherry Wall. CPT operates a mental health rehabilitation facility in Delhi, California. CPT contracts with the State of California and various other agencies to provide patients with residential mental health rehabilitation, treatment, and long term care. At all relevant times herein, CPT’s President and Medical Director was John T. Hackett, M.D. and its Facilities Director was James T. Drayton. At all relevant times, CPT employed between 25 and 85 persons. (Doc. 40, 2:12-2:13.) CPT also employed Larry Fuentes, the focus of Soares and Somera’s allegations. Fuentes was CPT’s lead MHW and worked the day shift in 2003 and 2004. Fuentes was supervised by Barbara Kelly and remained employed at CPT throughout the tenures of Soares and Somera. 1. CPT’s Employee Manual In 2001, CPT issued a comprehensive Employee Manual which remained in effect until revised in 2005. (Drayton Dec. ¶ 7; Ex. B (“CPT Emp. Manual”) at CPT 0314-0317.) The Employee Manual is provided to all employees for review during the initial orientation period. (Id.) Copies are maintained at CPT and immediately accessible to all employees upon request. (Id.) The Employee Manual includes a policy statement regarding harassment in the workplace and the duties and responsibilities of CPT employees. (Id.) In addition, all employees receive sexual harassment training during orientation. (Id.) In-service training is provided on a regular and recurring basis. (Id.) B. Events Leading up to Somera’s EEOC Charge Somera began working at CPT as a dietary aide on about February 6, 2003. (Plaintiffs Statement of Disputed Facts (hereinafter “DF”) l). As part of Somera’s orientation, Fuentes gave Somera a tour of the kitchen. (DF 2.) He showed her around the kitchen and to the walk-in refrigerator/freezer. (DF 2.) After showing Somera the freezer, Fuentes stopped in the exit door and told her to stay there because he wanted to see her nipples get hard. (DF 2.) He laughed and then proceeded to show her the rest of the kitchen. (DF 2.) Over the course of Somera’s employment, she alleges that Fuentes engaged in a pattern of “obnoxious sexual behavior.” Somera states that Fuentes would stand behind her and thrust his hips in a way suggestive of sexual intercourse. (DF 3.) This behavior began about two or three weeks after Somera started at CPT. (DF 3.) Fuentes also frequently grabbed his crotch in front of CPT employees, including Somera. (DF 4.) Somera complained to her supervisor, Sherry Wall, about Fuentes’ behavior during her orientation, and also about him grabbing his crotch in front of her and others. (DF 5.) This was consistent with CPT’s policy, which directed employees to complain to their direct supervisors. (DF 6.) Wall responded that Somera should not worry, and that Wall would talk to CPT’s Business Manager, Donna McGowan, about it. (DF 7.) Between one and three months after her first complaint, Wall told Somera that she had told Donna McGowan about Somera’s complaint, and asked Somera if Fuentes had said or done anything else. (DF 8.) Somera responded that Fuentes had come up from behind and thrust his hips simulating sex. (DF 8.) Wall responded that she would talk either to McGowan or Dr. Hackett. (DF 8). Somera maintains that Fuentes’ harassment escalated during her employment. According to Somera, Fuentes began bragging that he had sex in the kitchen with another employee and that this individual “gave good head” and “was a good lay.” (DF 9.) Fuentes also touched Somera’s hips and asked her if she was wearing thong underwear and, also, the color of her underwear. (DF 10.) Fuentes also looked down her blouse when she bent over. (DF 11.) Wall observed one such episode, and Wall assured Somera that she would report it. (DF 12.) Wall reported the episode to McGowan. (DF 13). Fuentes also started wiggling his pierced tongue and remarked that he could satisfy Somera’s sexual desires. (DF 15.) Somera states she told him, “That’s nasty,” to which he would respond, “Just kidding, girl, come on. You [are] just such a pussy.” Somera witnessed Fuentes engage in the same behavior with other female workers and patients. (DF 15.) She never saw him wiggling his tongue to men. (DF 15.) In late 2003, Somera received more responsibility in the kitchen, including scheduling the staff and creating nametags for the patients, both of which required her to use the computers located on the second floor. (DF 16.) Fuentes left six or seven love letters to her on the computer. (DF 16.) Fuentes also tried to look down her blouse when she was seated at the computer, and commented something to the effect of, “Shit, babe, you got nice boobs,” or “Girl, you have nice tits.” (DF 17.) In September 2003, Somera complained to Wall that Fuentes was touching her buttocks and asking her and other women if they were wearing thong underwear. (DF 18.) In November 2003, Somera asked Wall what was happening with her complaint about Fuentes. (DF 21.) Wall later told her that she had brought Somera’s complaints to the Director of Nurses, Barbara Kelly. (DF 20.) Around this same time, Donna McGowan or Kelly conveyed Somera’s complaint about Fuentes to Drayton. (DF 21.) As a result, Kelly interviewed Fuentes, informed him of the complaint, and admonished him to stay away from the kitchen. (Defendant’s Statement of Undisputed Facts (hereinafter “DSUF”) 58.) Kelly also followed up with Somera. (Id.; DF 22.) According to CPT, Kelly offered Somera alternative work arrangements, but Somera declined the offer. (DSUF 50.) The EEOC disputes that Fuentes was disciplined as a result of Somera’s complaints and that Kelly offered Somera an alternative work arrangement. (DF 24.) As a further result of the reported harassment, Drayton arranged for an in-service training on the subject of sexual harassment. (DSUF 60.) The sexual harassment training took place on November 20, 2003. (DF 23; DSUF 8.) The entire staff was at the training, including Fuentes. (DF 23.) According to Somera, Fuentes was on the telephone instead of paying attention to the presentation. (DF 24). CPT disputes this. However, the parties agree that, following the in-service training, there were no further incidents of unwelcome sexual harassment by Fuentes toward Somera. (DF 25; DSUF 23.) Thereafter, according to CPT, Somera told Mr. Drayton that she was quitting, but he convinced her to remain at CPT for two additional weeks. (DSUF 14.) In the meantime, Ms. Wall called and spoke with Ms. Somera and convinced her not to quit. Shortly thereafter, Ms. Wall resigned and CPT appointed Latrice Wills, a more senior employee, to supervise the kitchen. Somera resigned a few days later. CPT maintains, and the EEOC does not dispute, that Somera was overwhelmed by the additional responsibilities she assumed when Ms. Wall went on vacation. (DSUF 11.) CPT claims this led to her resignation. CPT also asserts that Somera believed that her coworkers were jealous that she was appointed to a temporary supervisory position. (DSUF 12.) CPT states that her resignation involved infighting in the kitchen, CPT’s decision to appoint another employee to kitchen supervisor, and continuing rumors that she and Mr. Fuentes had sex. (DSUF 13, 15.) The dispute over Somera’s departure appears limited to Wall’s involvement. Somera claims that she resigned after learning that Wall, whom she viewed as a protector, quit after a dispute over her sexual harassment allegations. (DF 28.) CPT denies this, stating that Wall’s resignation was not related to Somera, and stemmed from reasons set forth above. C. Events Leading up to Soares’ EEOC Charge 1. Background Soares began working at CPT as a mental health worker in October 2003. (DF 30; DSUF 28.) During orientation, Fuentes showed Soares the facilities and introduced her to the staff and patients. Fuentes, in Soares’ presence, asked a male psychiatric patient, “I bet you would like [Soares] to wash you in the shower, right?” (DF 31; DSUF 28.) Fuentes then asked the patient, “you like her ass, don’t you?” (DF 31; DSUF 28.) According to Soares, Fuentes repeatedly referenced his decorative piercing and its use for the sexual satisfaction of his partners. (DF 32.) Fuentes stated that it was “to please the woman” and it made “women feel good.” (Soares Dep. 39:12-39:19.) Fellow CPT employees also heard Fuentes’ comments concerning his tongue ring. (Id.) According to Soares, she relayed Fuentes’ comments to the nurses to whom she reported, Della McClendon and Janice Monges. (DF 33.) CPT disputes this and argues that McClendon and Monges were nurses and not in Soares’s chain of command. CPT maintains that Soares did not report Fuentes’ orientation comments to CPT management. (DSUF 30.) At unspecified points in time throughout her employment, Soares heard of Fuentes’ sexual comments toward other CPT employees. One employee told Soares that “she had squatted down [and] Fuentes want to know, you know, what it looked like.” (Soares Dep. 73:15-73:19.) Charging Party Somera also told Soares of with Fuentes and his sexually-charged behavior. Somera told Soares of the freezer incident which her orientation. Soares testified in her deposition that Fuentes constantly used the word “pussy” to describe female employees. (DF 36.) CPT argues that the record identifies only two instances when Fuentes used the word to refer to someone in particular. (Doc. 56, Exh. G 162:13-163:21.) First, in reference to a male employee, Bob Rice (“Don’t be a pussy”) and, second, following the shower incident, he referred to Soares as a “pussy” to a fellow employee. Soares did not discover the latter incident until after her departure from CPT. At some point in time during her employment, Fuentes displayed a calendar of near-naked women on his desk. (DF 37.) Fuentes asked Soares, “that doesn’t offend you, does it?” (Soares Dep. 66:19-66:24.) The parties agree that there was no further discussion between the two regarding the calendar. According to Soares, the calendar was approximately 5x5 inches and was prominently displayed on his desk. Fuentes’ desk was located directly adjacent to the room where CPT held employee meetings. (Soares Dep. 67:3-67:12.) Soares observed Fuentes’ calendar every shift, either on the way to staff meetings or to work at the meeting table. (Soares Dep. 67:10-67:12.) According to CPT, the calendar was a “Sports Illustrated Swimsuit Calendar,” and Soares viewed the swimsuit calendar on only one occasion in March 2004. (Doc. 56, Exh. G, 69:15-71:3) CPT also argues that Soares did not complain to Drayton about the calendar. (DSUF 26.) In March 2004, Soares was charting when a male patient named Kevin approached her and asked if she would accompany him outside so that he could have a cigarette. (DF 40; DSUF 33.) The patient did not like to shower as a general matter, and Soares told him that she would take him out for a cigarette if he agreed to shower first. (Id.) He agreed and she gave him his shower toiletries, which were kept under locks when not in use. He returned to Soares when he finished showering, and asked if she would take him outside for the cigarette. (Id.) According to Soares, Fuentes yelled from his position on the second floor words to the effect, “Kevin, you didn’t take no shower.” Soares replied, “He did, Larry. I gave him everything and he took a shower.” Fuentes said, “You liar, you did not.” Then Fuentes responded, “[wjell, have Valerie smell your balls to see if you took a shower.” Kevin responded, “That’s messed up.” Soares and Kevin then proceeded outside. (Id.) The next day, Soares complained about the episode to McClendon, a nurse whom she considered to be one of her supervisors. (DF 42.) She explained that she had been offended by Fuentes’ remark and also told McClendon that Fuentes’ behavior posed a threat to her: “If he says things like that to me in front of the male patients when I’m going in their rooms at night, sometimes by myself, they’re not going to take me seriously and I could get hurt.” (DF 42.) CPT states that McClendon was a day shift nurse and not Soares’ supervisor. (Soares Dep. 38:16-38:25.) At that point, Mr. Fuentes was her immediate supervisor. (Id.) Soares did not report the shower incident to Ms. Kelly, Ms. Steele, Dr. Hackett, or Mr. Drayton. (DF 41.) Soares also spoke with the charge nurse on the graveyard or “NOC” shift, David Baker, who had witnessed the episode. (DF 43.) According to Soares, she raised concerns that Fuentes’ behavior was putting her at personal risk, saying words to the effect that “if he makes me out to be a sexual thing with me and the male residents, at any one time going in their rooms, you know during the night, they may see me as that and do something, you know, be behind a door or what not if he keeps egging them on.” {Id.; Soares Dep., 57:20-59:2.) Although Baker thought it was a violation of CPT’s sexual harassment policy, he did not report the incident to management. (Baker Dep. 48:2-48:25, 50:1-50:5.) However, Baker told Soares that he would corroborate the incident if and when there was an investigation. (Baker Dep. 50:17-50:24.) CPT’s sexual harassment policy at the time directed employees to report episodes of potential harassment to their immediate supervisor or designated management representative. Additionally, any employees who witnessed or learned of harassment were obligated to report the incident to their supervisor or manager. (DF 45.) Baker never reported the episode to anyone else in CPT management or human resources. (DF 44.) CPT argues that Baker’s supervisory duties were limited to conveying information regarding patient status during shift exchanges. 2.Complaints to the Department of Mental Health The California Department of Mental Health received an anonymous report of the shower incident involving Soares, Fuentes, and the male patient. (DF 47.) The Department of Mental Health contacted CPT regarding the complaint and Dray-ton investigated it as a potential patient abuse episode. (DF 47.) He spoke to the male psychiatric patient, Kevin, about the episode. Kevin corroborated that it took place. Drayton also spoke with Fuentes about it and Fuentes told Drayton that he had apologized to Soares and she was fine with it. Drayton did not, however, speak with Soares about the incident. (DF 47.) According to the EEOC, the Department of Mental Health received several anonymous complaints about Fuentes pri- or to the shower episode. (DF 46.) This is supported by Drayton’s deposition testimony where he confirmed that Mr. Omoregie — the Department of Mental Health’s representative — requested a “chronology” of sexual harassment complaints involving Larry Fuentes. (Drayton Dep. 444:7-444:19.) Mr. Omoregie told Drayton that the Department had received several complaints about Fuentes on their hotline, some of a sexual nature, some of them involving patient care. (Id.) 3. Soares’Attempts to Contact Dray-ton According to Soares, she made several attempts to talk to Drayton following the shower incident. (DF 48.) Soares says she called and left messages for him with the secretary twice and slipped a note under his door informing him that she needed to see him. (DF 48.) It is undisputed that Soares never made contact with Drayton. 4. Events of April 9, 2004 In early April, Soares was transferred to the re-entry building. (DF 49.) At the time, the re-entry program was just being implemented, and there were only a few patients residing in the new building. (DF 49.) On the evening of April 9, 2004, CPT Systems Analyst Julie Steele visited the re-entry building. (DF 49; DSUF 20). The parties dispute what happened next. According to CPT, Steele discovered Soares asleep on the evening of April 9, 2004. (DSUF 37.) Around 11:00 p.m., Steele called Mr. Drayton and reported that she had discovered Ms. Soares asleep on the job working alone in the re-entry building with 22 patients. (DSUF 37.) According to Ms. Steele, she observed Ms. Soares on the living room couch in the reentry building, covered with a blanket and snoring. Ms. Steele reported that Ms. Soares then resisted her attempts to discuss the situation and offer suggestions. (Drayton Dep. at 34:6-37:17.) Sleeping on the job is a critical patient safety issue, a strict violation of CPT policy and a condition of its State licensing. (Doc. 41, Ex. A at CPT0321.) Ms. Soares was aware of the policy. (DSUF 36.) Upon receiving this information Mr. Drayton made the decision to terminate Ms. Soares based on the gravity of the violation and rejection of Ms. Steele’s suggestions. (DSUF 38.) At the end of her shift, the following morning, Ms. Soares was discharged. (DSUF 39.) According to Soares, Steele did not discover her sleeping on the night of April 9th. (DF 49.) Soares states that Steele entered the re-entry building about 15 minutes after her shift started. (DF 49.) Soares was sitting on a couch reading a magazine. (DF 49.) The television was on and the few patients in that building were asleep. (DF 49.) Steele entered from a door down the hallway, and the slamming of the door startled Soares. (DF 49.) Steele walked quicMy down the hall to the nurses’ “cage.” (DF 49.) Soares, who had never seen Steele at the facility at night before, assumed Steele was picking up some patient charts. (DF 49.) Steele came back out and they had a brief discussion in which Soares expressed that she was a little bored in the new building, then Steele left. (DF 49.) The next day, Fuentes told Soares she was terminated. (DF 49). The record reflects considerable dispute over whether CPT uniformly enforced its sleeping policy. (DF 60.) According to David Baker, a CPT nurse, he often slept during his shift and observed other employees sleeping during their shifts, including Soares. (Baker Dep. 65:2-67:25.) Baker was unaware of any occasion where a shift employee was discovered sleeping by a supervisor. (Baker Dep. 54:22-54:25.) Further, the record indicates that Jamie, a former CPT employee, was not fired after he was caught sleeping during his shift. (DF 61.) Jamie was given several chances to improve his sleeping patterns before he resigned. (DF 61.) According to Soares, the only other employee fired for sleeping on the job was Johnny Montalvo. (DF 62.) According to Montalvo, CPT employees, including Fuentes, discovered Montalvo sleeping during his shift on a number of occasions. (Montalvo Dep. 21:22-22:2.) Montalvo was not disciplined for sleeping until the final incident, which occurred in August 2008. (Montalvo Dep. 31:19-45:17.) The last Montalvo sleeping incident resulted in a resident escaping the facility. (Id.) 5. Soares’ Sexual Harassment Complaints Although she complained of Fuentes’ comments to fellow CPT employees, it is undisputed that Soares' did not file a harassment complaint or report any harassment to CPT management during her employment. (DSUF 40, 45.) This includes the orientation incident, Fuentes’ references to “pussy”, and the Sports Illustrated calendar. (DSUF 42-43.) It is similarly undisputed that Soares did not report the shower incident to Ms. Kelly, Ms. Steele, Dr. Hackett, or Mr. Drayton. (DSUF 41, 46.) However, Soares did report the incident to Nurse McClendon, Nurse Baker, and spoke with Fuentes, her direct supervisor, about his comments. D. EEOC Involvement and Investigation 1. Ms. Soares In April 2004, Ms. Soares filed a discrimination charge with the EEOC against CPT. (Plaintiffs Statement of Undisputed Facts (“PSUF”) 2.) Soares alleged that she and other women were sexually harassed by Larry Fuentes during her employment at CPT. (PSUF 2.) Soares also stated that she was fired in retaliation for opposing the sexual harassment. (PSUF 2.) On May 4, 2004, the EEOC provided CPT with notice of Soares’ discrimination charge. (PSUF 3.) The notice was sent to Dr. John Hackett, Owner, California Psychiatric Services, and indicated the discrimination charge was based on “sex” and “retaliation.” (Exh. 2) The letter stated that “there is reasonable cause to believe that [CPT] discriminated against [Soares] and a class of similarly situated female employees based on their sex [¶]... ] and there is reasonable cause to believe [CPT] retaliated against [Soares].” The letter did not mention any other female employee and did not include specific evidence supporting the conclusion. (PSUF 14-15.) 2. Ms. Somera On September 27, 2004, Somera filed a charge of discrimination with the EEOC against CPT. (PSUF 4.) Somera alleged that she and other women were sexually harassed by Larry Fuentes, the harassment was “verbal and physical,” and continued throughout her tenure at CPT. (PSUF 4.) Soares also stated that she complained about Fuentes to her supervisor Sherry Wall, but no action was taken and the harassment continued. Somera did not allege retaliation or constructive discharge in her EEOC charge. (PSUF 10.) On October 14, 2004, the EEOC provided CPT with notice of the Somera’s discrimination charge. (PSUF 5.) The notice was sent to Dr. John Hackett, Owner, California Psychiatric Services, and indicated “sex” as the basis for the discrimination charge. (Exh. 4.) The letter stated that “the evidence demonstrates that [Somera] and other similarly situated females were harassed,” but did not include specific evidence supporting the conclusion. (PSUF 12.) The letter also did not mention any other female employee and did not include allegations of retaliation or constructive discharge. (PSUF 11, 13.) 3.EEOC’s Investigation and Correspondence Following notice of the charges, the EEOC investigated Soares’ and Somera’s discrimination claims. (PSUF 6.) As part of the investigation, the EEOC requested from CPT statements of position and copies of all documentation supporting its position. (PSUF 6.) The EEOC also conducted interviews with current and former CPT employees. (PSUF 6.) On September 1, 2005, the EEOC sent correspondence referencing “Ms. Valerie Shaw” to CPT in Delhi, California. The correspondence included EEOC’s determination letter that Ms. Shaw and a class of females were subjected to harassment based on their sex and that the Charging Party was terminated for protected activity. The determination letter noted that EEOC “will contact you in the near future to begin the conciliation process.” The EEOC sent additional correspondence to CPT on September 1, 2005. The second letter referenced “Ms. Mariel Somera” and included EEOC’s determination that Ms. Somera and a class of females were subjected to harassment based on their sex. The determination letter noted that EEOC “will contact you in the near future to begin the conciliation process.” Following the September 1, 2005 letters, the EEOC and CPT attempted to settle the discrimination claims made by Ms. Soares and Ms. Somera. (PSUF 8.) According to CPT, the EEOC offered to resolve the matter for $75,000. (PSUF 8.) CPT offered $15,000. (PSUF 8.) On January 31, 2006 and February 22, 2006, the EEOC sent letters to CPT’s legal counsel regarding Ms. Soares and Ms. Somera’s claims. (PSUF 9.) The EEOC stated that “efforts to conciliate this charge as required by our procedures and policies have been unsuccessful” and it was forwarding the matter to its regional attorney for litigation review. (PSUF 9.) This case followed. II. PROCEDURAL BACKGROUND. This action was filed on September 13, 2006, by Plaintiff Equal Employment Opportunity Commission. The complaint contained several causes of action related to CPT’s alleged discrimination, harassment, and adverse employment actions. (Doc. 1.) Specifically, the complaint raised hostile work environment causes of action on behalf of Mariel Somera, Valeria Soares, and similarly aggrieved women. The EEOC also raised a retaliation claim on behalf of charging party Soares and a constructive discharge claim on behalf of Somera. The EEOC requested punitive damages. On December 11, 2006, Defendant CPT filed an answer to the complaint. (Doe. 6.) On May 4, 2009, the EEOC filed a motion for summary adjudication on whether it satisfied Title VII’s statutory prerequisites to commence litigation on behalf of Soares, Somera, and “similarly aggrieved parties.” (Doc. 37.) CPT moved for summary adjudication on May 4, 2009. (Doe. 40.) As to Somera, CPT argues that the EEOC’s constructive discharge claim is barred on three grounds: 1) her EEOC charge was untimely; 2) the EEOC failed to provide notice and opportunity to conciliate on the discharge claim; and 3) Somera sought to be rehired after quitting and, therefore, was not constructively discharged. As to Soares, CPT seeks summary adjudication on the following claims: 1) her sexual harassment claim because the harassing events she experienced did not rise to an actionable level; and 2) her retaliation claim fails because Soares did not engage in protected activity and the EEOC cannot demonstrate a pretextual dismissal. As to Soares, CPT only challenges the merits of her claims; CPT does not challenge Somera’s satisfaction of Title VII’s jurisdictional prerequisites. Defendants also move to dismiss the EEOC’s claims for punitive damages on behalf of Somera and Soares. On June 12, 2009, the EEOC opposed CPT’s motion for summary adjudication. (Docs. 54-57.) On June 15, 2009, CPT opposed the EEOC’s motion for summary adjudication. (Doc. 59.) A. Evidentiary Objections Defendant objects to the Declarations of John Hackett, David Baker and Mariel Somera, submitted in support of the instant Motion for Summary Adjudication, on the ground that these witnesses lack personal knowledge, the cited testimony constitutes inadmissible hearsay and lacks foundation. (Docs. 61, 68.) Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits supporting and opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.” Hearsay is a statement, other than one made by the declarant, offered in evidence to prove the truth of the matter asserted. Fed R. Evid. 801(c). Hearsay is not admissible except as provided by the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Fed R. Evid. 802. CPT’s objections are, in the majority, sustained. In order to enforce the standards set forth in Federal Rules of Civil Procedure and the Federal Rules of Evidence, the Court will simply disregard any portion of the testimony containing inadmissible hearsay, conjecture, speculation, or not made on the basis of his personal knowledge. Any assertions made by Hackett, Baker or Somera that are not supported by the record, by a demonstration of personal knowledge or by corroborating evidence, are insufficient to establish a genuine issue of material fact. To the extent that the statements are offered to prove the truth of the matter asserted, they are inadmissible. See Fed R. Evid. §§ 801-802 (“Hearsay is not admissible except as provided by the Federal Rules of Evidence [¶]... ]”). III. LEGAL STANDARDS. A. Summary Judgment!Adjudication Summary judgment, or summary adjudication, is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the non-moving party’s case.” Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the nonmovant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A non-movant’s bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009). “[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor.” Id. (emphasis in original). “[Sjummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. B. Title VII Title VII of the Civil Rights Act makes it unlawful for employers to discriminate on the basis of sex with respect to the terms and conditions of employment. 42 U.S.C.2000e-2(a)(l). The courts have held that discriminatory conduct includes harassment (see e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) when that harassment occurs because of sex. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (stating that Title VII only prohibits harassment which occurs because of sex, regardless of whether the harasser is the same sex as or opposite sex from the victim). Courts have recognized two legal theories on which plaintiffs may base sexual harassment claims. The first is quid pro quo harassment, or harassment in which a supervisor requires an employee to engage in sexual activity and threatens tangible employment actions, such as demotion, denial of promotion, or discharge, if the employee does not comply with the harasser’s demands. The second is hostile work environment harassment. This harassment can be perpetrated by a supervisor or coworker. The hallmark of hostile work environment harassment is that there is no tangible employment action which results from the harassment. See Burlington v. Ellerth, 524 U.S. 742, 751-753, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting that the terms “quid pro quo” and “hostile work environment” have been used in the courts to refer to sexual harassment and describe respectively, harassment that is accompanied by specific harm to the victim’s job and harassment that harms an employee’s job more generally, by creating a hostile work environment). To survive a defendant’s motion for summary judgment, as a threshold matter, a plaintiff must show that the harassment occurred because of sex. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In addition to this requirement, to state a prima facie case of hostile work environment sexual harassment a plaintiff must show that she has experienced (1) conduct of a sexual nature (2) that is so severe or pervasive as to alter the terms and conditions of her working environment and (3) that the conduct is unwelcome. Harris v. Forklift Systems, 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000); Ellison v. Brady 924 F.2d 872, 875 (9th Cir.1991). The plaintiffs belief that she has been subjected to a hostile and abusive work environment must be both subjectively held and objectively reasonable. Ellison, 924 F.2d 872, 879 (9th Cir.1991). IV. DISCUSSION. To determine the scope of the actions that may be considered as part of the EEOC’s case, the first inquiry addresses the administrative filing requirements of Title VII. A. Conditions Precedent Title VII allows the EEOC to commence civil suits in its own name. 42 U.S.C. § 2000e — 5(f)(1). There are four conditions precedent, before the agency brings suit. First, a charge of discrimination must be filed. The EEOC must then inform the alleged wrongdoer of the charge, conduct an investigation, and determine whether reasonable cause exists to believe that the charges are true. If reasonable cause is found, the agency must engage in conciliation efforts. EEOC v. Pierce Packing Co., 669 F.2d 605, 607 (9th Cir.1982). The EEOC argues that it has met all jurisdictional requirements to file this action on behalf of Soares, Somera, and the class of similarly situated women. CPT disagrees, in part. CPT argues that the EEOC has not fulfilled Title VIPs statutory prerequisites as to: (1) the timeliness of Somera’s administrative charge; (2) the notice and conciliatory regarding Somera’s constructive discharge claim; and (3) the notice and conciliatory requirements regarding the class claim. 1. Charging Party Soares The EEOC moves for summary adjudication as to whether it satisfied the jurisdictional prerequisites to bring suit on behalf of charging party Soares. CPT does not oppose the motion. Here, Soares filed her EEOC Charge on April 26, 2004 and the EEOC provided CPT with notice of the Soares Charge in May 2006. The Soares Charge states that Soares was sexually harassed by her supervisor, Larry Fuentes, from the time of her hire on about October 16, 2003 (192 days before she filed her charge) until her termination on about April 10, 2004. Because the entire period of Soares’ employment falls within the 300 day limitations period, there can be no dispute that her charge was timely. The record also reflects that the EEOC investigated Soares’ claims and attempted to settle the matter prior to bringing suit. The EEOC’s efforts satisfy Title VII. The EEOC’s motion for summary adjudication as to whether it satisfied the conditions precedent to bring suit on behalf of charging party Soares is GRANTED. 2. Charging Party Somera a. Untimely Administrative Charge CPT argues that Somera’s claim is untimely because the last discriminatory act against her took place more than 300 days from the date on which Somera filed her charge of discrimination. A plaintiff must file a timely charge of discrimination with the EEOC as a prerequisite to bringing suit under Title VII. 42 U.S.C. § 2000e-5(e). Title VII requires that a complainant file a charge with the EEOC within 180 days after the last act of alleged discrimination, unless the alleged violation occurred in a jurisdiction that has a “work-sharing” agreement. Id. California is a “work-sharing” state with a state agency capable of affording relief, that is, the California Department of Fair Employment and Housing, thus the period for filing a charge of employment discrimination with the EEOC can be 300 days. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir.2000). In a Title VII suit, a charge filed after the period has run is untimely and cannot be the basis of a suit. Roberts v. Gadsden Memorial Hosp., 835 F.2d 793, 799 (11th Cir.1988). Failure to file an EEOC charge within the prescribed 300-day period is not a jurisdictional bar, but it is treated as a violation of a statute of limitations, complete with whatever defenses are available to such a violation, such as equitable tolling and estoppel. Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir.1986). The timing — or lack thereof — of Somera’s claim is not in dispute. Somera, a CPT employee from February 2003 until December 2003, stated in her deposition that the last act of alleged discrimination against her took place on November 20, 2003. The 300-day time limit thus commenced on that day and expired on September 15, 2004. It is undisputed that Somera did not file a charge with the EEOC until September 27, 2004, more than the 300 days after last act of alleged discrimination. While the EEOC does not contest the untimeliness of Somera’s charge, it argues that Somera is entitled to rely on the earlier EEOC charge filed by Soares to satisfy the 300-day statutory prerequisite. The EEOC contends that because Soares’ charge was timely and brought on behalf of “Soares and any other similarly situated women,” it provided the EEOC with a sufficient jurisdictional foundation to bring a suit on Somera’s behalf. This is known as the “single filing” rule or “piggybacking.” Holowecki v. Fed. Express Corp., 440 F.3d 558, 564 (2d Cir.2006). Although the Ninth Circuit has not specifically addressed the issue, the single filing rule has been applied under various circumstances by the Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. See Anson v. Univ. of Tex. Health Science Center, 962 F.2d 539, 541 (5th Cir.1992) (The single filing rule is “universally [held].”); Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir.2004); Anderson v. Unisys Corp., 47 F.3d 302, 308 (8th Cir.1995). Most courts have adopted a test requiring only that the timely exhausted claims and the non-exhausted claims arise out of the same circumstances and occur within the same general time frame. See e.g., Stone v. First Union Corp., 371 F.3d 1305, 1311 (11th Cir.2004). A charge will be adequate to support piggybacking under the single filing rule if it contains sufficient information to notify prospective defendants of their potential liability and permit the EEOC to attempt informal conciliation of the claims before a lawsuit is filed. Howlett v. Holiday Inns, Inc., 49 F.3d 189, 195 (6th Cir.1995). To determine the adequacy of a charge for use in piggybacking subsequent plaintiffs, courts often look to the size and type of the work unit involved. Id. “[M]ere similarity of the grievances within the same general time frame suffices to permit the ‘single filing rule’ ” when the complaints “arise in a work unit of modest size.” Id. (quoting Tolliver v. Xerox Corp., 918 F.2d 1052, 1058 (2d Cir.1990)). CPT argues that Somera is not “similarly situated” to Soares, to prevent the single filing rule from relieving the tardiness of Soares’ complaint. CPT asserts that Somera’s claims differ from Soares’ claims in that they focus on complaints to supervisors while Soares’ claims focus on complaints to co-workers. Further, CPT argues that Somera and Soares held different jobs, worked different shifts, and had different supervisors. CPT contends this creates a genuine issue of material fact as to the charging parties relatedness and supports a denial of the EEOC’s motion for summary adjudication. CPT’s arguments are unpersuasive. The EEOC has adequately shown that the individual claims of charging parties arose out of similar alleged sexually harassing treatment by the same individual, who allegedly created a constant environment of sexually offensive conditions for female employees, during the same timeframe. Somera and Soares both assert that they were discriminated against on the basis of their sex by Larry Fuentes, a fellow CPT employee, from 2003-2004. The parties’ claims need not be factually identical to those timely filed, but instead need to be sufficient similarity as to prevent frustration of Title VII policies. See Trbovich v. Ritz-Carlton Hotel Co., 920 F.Supp. 1030 (E.D.Mo.1995). The relatedness of the Soares and Somera’s claims is best illustrated by their EEOC charges, filed by Somera on September 27, 2004 and Soares on April 26, 2004, respectively. Like Soares’ charge, Somera’s charge described in detail the allegedly harassing conduct, such as Larry Fuentes’ sexually explicit comments, his sexual epithets, and his inappropriate touching. Soares’ charge also described the nature of the harassment and notice that Larry Fuentes was harassing other CPT employees. Soares’ charge provided, for instance, that “I and other women were subjected to sexual harassment by Supervisor Larry Fuentes [¶]... ] he was constantly making gross sexual statements.” (Doc. 37, Exh. 1.) Moreover, Somera’s charge stated that “Manager Larry Fuentes sexually harassed me and other female employees. The harassment was of a verbal and physical nature, and was constant.” (Doc. 37, Exh. 3.) CPT relies on Arrieta v. Yellow Transp., Inc., 2008 WL 5220569, 2008 U.S. Dist. LEXIS 101502 (N.D.Tex.2008), to assert that the parties are not similarly situated. Arrieta is factually distinguishable. Unlike this case, the charging party in Arrieta did not provide any evidence supporting relatedness. Arrieta found: [Plaintiffs] argument consists primarily of the conclusory statements that he is similarly situated to the other plaintiffs and that their charges provided some notice to YTI of the collective nature of their charges. He does not offer any explanation or argument to show how he is similarly situated to the other plaintiffs or how their charges provided the requisite notice to YTI. Given the purpose of the exhaustion requirement and the limited nature of the piggybacking exception, a plaintiff may not simply assume that his independent, non-exhausted claims can be supported by the independent claims of others. Arrieta at *25, 2008 U.S. Dist. LEXIS 101502 at *79-*80. CPT’s reliance on Arrieta misses the mark. Because of the similarity of Soares’ and Somera’s EEOC charges, CPT had notice regarding the relatedness of their sexual harassment allegations against the same individual, which were ignored by CPT’s management. Arrieta is distinguishable. Here, the requirements of the single filing rule are met. CPT’s unsupported assertions that the parties are not “similarly situated” are not enough to create a genuine issue of material fact. Although Somera’s charge was untimely, the EEOC has met its Rule 56 burden and demonstrated, as a matter of law, that the individual claims of the charging parties arose out of similar alleged harassing treatment to enable use of the “single filing” exception. CPT does not oppose presence of the remaining jurisdictional prerequisites regarding the EEOC’s ability to bring a hostile work environment claim on Somera’s behalf. Somera can “piggyback” on Soares’ earlier EEOC charge, making her charge timely. The record reflects that the EEOC investigated Somera’s claims, provided CPT with a letter of determination, and attempted to settle the matter prior to bringing suit. The EEOC’s efforts satisfy Title VII. The EEOC motion as to whether it satisfied the conditions precedent to bring a hostile work environment claim on behalf of charging party Somera is GRANTED. CPT’s contrary motion for summary adjudication is DENIED. b. Somera’s Constructive Discharge Claim CPT contends that Somera’s constructive discharge claim was not within the scope of her EEOC charge and is not actionable. CPT states that the EEOC “never provided notice to CPT” and “never considered or investigated Ms. Somera’s voluntary resignation as a constructive discharge flowing from allegations of sexual harassment.” The EEOC counters that the claim of “constructive discharge constitutes an additional consequence of the conduct alleged in the charge” and is permissible. Both parties move for summary adjudication on the issue. Analysis of this issue begins with an examination of the prerequisites to suit by the EEOC and the scope of claims the EEOC is empowered to assert. In EEOC v. Shell Oil Co., 466 U.S. 54, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984), the Supreme Court explained the EEOC’s enforcement procedure as follows: In its current form, Title VII sets forth “an integrated, multistep enforcement procedure” that enables the Commission to detect and remedy instances of discrimination. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359, 97 S.Ct. 2447, 2450, 53 L.Ed.2d 402 (1977). The process begins with the filing of a charge with the EEOC alleging that a given employer has engaged in an unlawful employment practice [....] [The statute] require[s] the Commission to “serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the] employer ... within ten days” of the filing of the charge. 42 U.S.C. § 2000e-5(b). After a charge has been filed, the EEOC conducts an investigation of the allegations contained therein.... If, after completing its investigation, the EEOC determines that there is “reasonable cause to believe that the charge is true,” it must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” § 2000e-5 (b). If those methods prove ineffectual, the Commission is empowered to bring a civil action against the employer. § 2000e-5(f)(l). In the course of this procedure, a “reasonable cause” determination by the EEOC is critical: The statute directs the EEOC to notify the respondent of the charge within 10 days, to investigate the charge, and to determine “as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge” whether there is reasonable cause to believe that the charge is true. 42 U.S.C. § 2000e-5(b). If the EEOC finds no reasonable cause, then it must dismiss the charge. See id. If it finds reasonable cause, then it must attempt to resolve the dispute “by informal methods of conference, conciliation, and persuasion.” Id. “If within thirty days after a charge is filed ... the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any [non-governmental] respondent....” Id. § 2000e — 5(f)(1). Martini v. Federal Nat'l Mortgage Ass’n, 178 F.3d 1336, 1340 (D.C.Cir.1999). Thus, following investigation, a determination that “reasonable cause” is lacking ends the EEOC’s procedures, while a determination that there is “reasonable cause” initiates the conciliation process, and also opens the door to suit by the EEOC, if conciliation fails. EEOC v. Occidental Life Ins. Co., 535 F.2d 533, 541-542 (9th Cir.1976). The Ninth Circuit adopted the reasoning of other courts on the importance of a reasonable cause determination and conciliation as prerequisites to suit by the EEOC. Id.; see also EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982) (“Genuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit by the EEOC.”) Turning to the scope of the claims the EEOC may assert, admittedly, once the EEOC decides to sue in its own name, it is not limited to the facts presented in the charge. EEOC v. Farmer Bros., 31 F.3d 891, 899 (9th Cir.1994). Rather, the EEOC may sue based on any violations that fall within the scope of the EEOC’s actual investigation, or are “like or reasonably related to” the allegations made before the EEOC, such that they would have been included within the scope of an EEOC investigation. Id.; see also Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990) (“The jurisdictional scope of a Title VII claimant’s court action depends upon the scope of both the EEOC charge and the EEOC investigation.”). However, as this statement indicates, the EEOC’s power to sue depends upon ascertainment of a violation, in other words, upon a “reasonable cause” determination that a violation has occurred. In EEOC v. Hearst Corp., Seattle Post-Intelligencer Div., 553 F.2d 579 (9th Cir.1976), a gender discrimination case, the Ninth Circuit explained: [S]o long as discovery of the new discrimination arises out of the reasonable investigation of the charge filed, it can be the subject of an EEOC ‘reasonable cause’ determination to be followed by an EEOC offer of conciliation and, if conciliation fails, by a civil suit — without the filing by EEOC of a separate charge on the new claim. In other words, the original charge is sufficient to support EEOC administrative action, as well as an EEOC civil suit, for any discrimination stated in the charge itself or discovered in the course of a reasonable investigation of that charge, provided such additional discrimination was included in the EEOC ‘reasonable cause’ determination and was followed by compliance with the conciliation procedures of the Act. Hearst at 580-581. Here, the original charge by Somera alleged that she and other women were sexually harassed by Larry Fuentes, the harassment was “verbal and physical,” and continued throughout her tenure at CPT. Somera’s charge did not allege constructive discharge, retaliation, or otherwise mention her exit from CPT. Thereafter, the EEOC commenced its investigation into Somera’s claims, which included interviewing witnesses and requesting documents. The EEOC issued a letter of determination regarding Somera’s claims on September 1, 2005. The letter stated that “[biased on the evidence of record, there is reasonable cause to believe that Respondent discriminated against Charging Party and a class of similarly situated female employees based on their sex, female, in violation of the statute.” The letter mentions only Somera’s gender discrimination claims; it did not mention Somera’s departure from CPT and did not find that there is reasonable cause to believe that CPT constructively discharged Somera. The EEOC argues that the base charge of sexual harassment puts CPT on notice of the constructive discharge claim, and that “as long as the EEOC’s finding of harassment is clear, the notice need not detail every consequence of the harassment.” (Pl.’s reply, pg. 8.) The EEOC cites EEOC v. Newtown Inn Assoc., 647 F.Supp. 957 (E.D.Va.1986)., in support of its argument. However, Newton is distinguishable. In Newtoivn, the charging parties filed charges with the EEOC alleging gender discrimination. The EEOC conducted an investigation and issued letters of determination stating it found reasonable cause to believe the charging parties were subjected to sexual harassment and retaliation. Following failed conciliation efforts, the EEOC filed a lawsuit alleging, among other things, sexual harassment, retaliation, and constructive discharge. Defendant moved to dismiss the constructive discharge claim arguing that it is outside the scope of the original administrative charge and subsequent EEOC investigation. The court held that the constructive discharge elaim “logically flowed” from the substance of the initial administrative charge because the EEOC had determined that the charging parties and at least six other female associates were reassigned to a less desirable shift. The court found that the constructive discharge claims — tacked onto the same charging parties’ retaliation claims — broadened the scope “only minimally.” Here, unlike Newton, the EEOC’s complaint does not refer to an earlier retaliation claim made by the charging party. In fact, Somera did not allege constructive discharge or include any facts relating to her resignation. In Newtown, the EEOC also notified the employer — during conciliation discussions — that compliance would require “reinstatement and back wages for five additional individuals allegedly constructively discharged [¶]... ]”. There is no such notice by the EEOC to the employer in this case. The EEOC states that specific notice of the constructive discharge claim is not required because “a constructive discharge predicated upon harassment does not provide a new theory of discrimination.” (Pl.’s Rep. 7:24-7:28.) This is not accurate. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir.2004)(finding that Plaintiff could not sustain his Title VII constructive discharge claim because it was not “like or reasonably related” to the original EEOC charge, which described only racial discrimination and harassment.); Zartman v. Coffey County Hospital, 2004 WL 877667 (D.Kan.2004) (finding that Plaintiffs were not entitled to pursue a constructive discharge claim because it was not “similarly situated” to claims of hostile work environment and retaliation.); Tupua v. Hawaii, Dept. of Health, 2009 WL 1561578 (D.Haw.2009) (finding that treatment on the job and constructive discharge are separate and distinct discriminatory events.); Harvill v. Westward Communications, LLC, 311 F.Supp.2d 573 (E.D.Tex.2004)(stating that “[cjonstructive discharge, however, does not grow out of harassment allegations.”). Harvill is instructive. In Harvill, Defendants moved for summary judgment on Plaintiffs constructive discharge claim because Plaintiffs EEOC charge did not include a claim for constructive discharge. Plaintiff first introduced a claim for constructive discharge in her complaint. The Defendants argued it fell outside the scope of her EEOC charge. In granting Defendant’s motion, the Harvill court stated: It is undisputed that Harvill did not assert constructive discharge in her charge. The charge only contains harassment allegations regarding the terms and conditions of Harvill’s employment. Constructive discharge, however, does not grow out of harassment .allegations. Harvill at 585. Without more, allegations of sexual harassment do not provide a foundation for constructive discharge claims. Constructive discharge ends the employer/employee relationship and requires the plaintiff to demonstrate that “a reasonable person in the plaintiffs position would have felt he or she was forced to quit because of intolerable or discriminatory work conditions.” Wallace v. City of San Diego, 479 F.3d 616, 626 (9th Cir.2007). This differs dramatically from sexual harassment’s posture and required elements. The EEOC presents no evidence that they considered or investigated Somera’s resignation as a constructive discharge flowing from her sexual harassment allegations. If the EEOC was squarely presented with the issue of constructive discharge — which allegedly occurred ten months prior to Somera’s EEOC charge and two years prior to the EEOC’s LOD — , why did they limit a reasonable cause determination to Somera’s allegation of gender discrimination? Whatever the reason, we arrive at the same point: the EEOC did not find reasonable cause to include allegations of constructive discharge. While mindful of enforcing “form over substance,” the EEOC’s lack of a reasonable cause finding is conspicuous. It provides a basis for conciliation and, if those efforts fail, permits the EEOC to initiate litigation. By failing to provide any notice to CPT of the constructive discharge claim — whether in the form of the EEOC charge, factual findings, or the LOD — the EEOC circumvents its “investigatory and conciliatory role, as well as deprive[s] the charged party of notice of the charge.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir.2002)(quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985)). Consistent with case law and the purposes of Title VII, notice to CPT regarding the constructive discharge claim was required to maintain such a claim on Somera’s behalf. In this case, the EEOC’s lack of a reasonable cause finding is fatal to EEOC’s pursuit of a constructive discharge claim on Somera’s behalf. Even if the constructive discharge claim is factually related to the substance of the sexual harassment claim, Somera did not include the constructive discharge claim in her EEOC charge and the EEOC did not include the allegations of constructive discharge in its reasonable cause determination. Title VII’s jurisdictional standards preclude a constructive discharge claim in this case. Summary adjudication is GRANTED in favor of CPT regarding the EEOC’s ability to bring a constructive discharge claim on Somera’s behalf. The EEOC’s cross-motion in this regard is DENIED. Given this ruling on Somera’s constructive discharge claim, it is unnecessary to decid